(HC) Gutierrez v. The People, No. 1:2012cv01487 - Document 13 (E.D. Cal. 2012)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Petition for Writ of Habeas Corpus as Duplicative; ORDER DIRECTING That Objections Be Filed Within Twenty Days; ORDER DIRECTING Clerk of the Court to Assign District Judge to Case, signed by Magistrate Judge Jennifer L. Thurston on 9/28/12. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARIO GUTIERREZ, 12 13 14 15 16 17 Petitioner, v. THE PEOPLE, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:12-cv-01487-JLT FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AS DUPLICATIVE ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS ORDER DIRECTING CLERK OF THE COURT TO ASSIGN DISTRICT JUDGE TO CASE 18 19 20 21 22 23 24 25 26 27 28 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The instant petition was filed on August 8, 2012, challenging a 1998 Kern County Superior Court conviction for assault with a deadly weapon that resulted in a determinate sentence of seven years. (Doc. 1, p. 2). In the course of screening this case, the Court has become aware of a virtually identical petition filed by Petitioner in case no. 1:12-cv-01289-AWI-GSA, filed the same date as the instant petition. The two petitions are identical with two exceptions: (1) the instant petition contains a request for damages in the amount of two billion dollars; and (2) an “explanatory” note on page nine about why the 1998 strike conviction was improper. Petitioner also indicates in the instant petition that it is intended to be the original and that two other copies were submitted to the Court as copies. 1 DISCUSSION 1 2 Although it appears that Petitioner may have intended only to submit one petition for filing, 3 i.e., the instant petition, the Clerk of the Court filed both the instant petition and at least one other 4 copy, giving them different case numbers and assigning them to different Magistrate Judges. In case 5 no. 1:12-cv-01289-AWI-GSA, the Court, on September 25, 2012, dismissed the petition on the 6 grounds that it fails to state a claim for habeas relief, it contains unexhausted claims, and fails to name 7 a proper respondent. (Doc. 14, case no. 1:12-cv-01289-AWI-GSA). However, the Court in that case 8 gave Petitioner an opportunity to file a first amended petition that corrects the deficiencies the Court 9 identified in its order dismissing the original petition. The amended petition is presently due on or 10 11 before October 29, 2012. Because the instant petition is, with the exceptions noted above, verbatim identical to the 12 petition in case no. 1:12-cv-01289-AWI-GSA, the Court will recommend that this petition be 13 dismissed as duplicative and that Petitioner proceed with any claims he wishes to pursue in a first 14 amended petition in the other case. If Petitioner wishes to pursue money damages or wishes to further 15 elaborate on his contention that his 1998 strike was unlawful, he will have to raise these issues before 16 the Court in that action. 17 18 19 20 21 22 ORDER The Clerk of the Court is DIRECTED to assign a United States District Judge to this case. RECOMMENDATIONS Accordingly, the Court HEREBY RECOMMENDS that the instant petition be dismissed as duplicative of case no. 1:12-cv-01289-AWI-GSA. This Findings and Recommendation is submitted to the United States District Court Judge 23 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 24 Rules of Practice for the United States District Court, Eastern District of California. Within twenty 25 (20) days after being served with a copy of this Findings and Recommendation, any party may file 26 written objections with the Court and serve a copy on all parties. Such a document should be 27 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 28 Objections shall be served and filed within ten (10) court days (plus three days if served by mail) after 2 1 service of the Objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 2 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time 3 may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 4 1991). 5 6 7 8 9 IT IS SO ORDERED. Dated: September 28, 2012 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 9j7khijed 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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